Legal thoughts, since 2005.

Strict scrutiny is part of a hierarchy of standards courts employ to weigh an asserted government interest against a constitutional right or policy that conflicts with the manner in which the interest is being pursued...It arises in two basic contexts: when a "fundamental" constitutional right is infringed, particularly those listed in the Bill of Rights; or when the government action involves the use of a "suspect classification" such as race or national origin that may render it void under the Equal Protection Clause...(For a law to pass muster): First, it must be justified by a compelling governmental interest. Second, the law or policy must be narrowly tailored to achieve that goal or interest. Finally, the law or policy must be the least restrictive means for achieving that interest.

This week's Legal Currents column, which is published in The Daily Record, is entitled "Are peeping Toms criminals, or are they just annoying?" The article is set forth in full below, and a pdf of the article can be found here.

Unless an “imaging device” is used for
“peeping,” Toms are merely annoying in
New York, since Penal Law § 250.45 et.
seq. prohibits only the use of imaging devices to
capture the likeness of another person within
certain contexts.

However, voyeurism occurring through the
use of the naked eye has yet to be criminalized.

New York City Councilman Peter F. Vallone Jr. perceives
this to be a glaring gap in the law. As such, he recently sponsored
broadly worded legislation that would make nonconsensual
voyeurism a Class B misdemeanor, punishable by up
to 90 days in jail.

The proposed law parrots language used in Penal Law §
250.45 and prohibits the viewing “of another person … in
other than a casual or cursory manner, for purpose of personal
amusement, entertainment, sexual arousal, sexual gratification,
or for the purpose of degrading or abusing the person
viewed” while the person is located in either a private or public
place, as defined in the law.

Under the proposed law, voyeurism in a public place is
unlawful if a person “deliberately and repeatedly position(s)
him or herself in a public place to view another person’s sexual
or other intimate parts while such person is in a public place
and without such person’s knowledge or consent, when such
parts are not otherwise visible to the public.”

Voyeurism in a private place prohibits “viewing another
without their knowledge or consent, at a place and time when
a person has a reasonable expectation of privacy, while such
person is (1) in a state of undress or partial dress, (2) engaged
in sexual intercourse or sexual contact, or (3) urinating
or defecating.”

Vallone drafted the bill, in part, due to complaints
about a man who stood beneath an elevated
subway station in Vallone’s district and
stared up women’s skirts. If enacted, the law may
very well serve its purpose in making such questionable
conduct illegal.

However, as noted by New York Civil Liberties
Union Executive Director Donna Liberman: “It
raises major Constitutional concerns because it
defines voyeurism in vague and overly broad
terms that would give police officers broad latitude
to arrest New Yorkers guilty of nothing
more than a furtive glance.”

It could arguably criminalize relatively harmless conduct
such as innocent comparisons made by insecure men while
standing at urinals in public restrooms. If the law is passed,
New York City men may want to consider waiting in line in
order to use the limited number of available stalls in public
restrooms, lest they find themselves charged with “deliberately
view(ing) another without their knowledge or consent
while such person …(was) urinating.”

Presumably, the only defense would be to prove the alleged
viewing was cursory and caused the unconfident defendant
no amusement or entertainment whatsoever and, in fact, had
the opposite effect of further increasing his insecurity.

If the law is enacted, self-conscious men everywhere would
be well advised to avoid traveling to New York City. If the trip
cannot be avoided, purchase a pair of blinders or be prepared
to face the risk of extreme public humiliation should your eyes
wander while in the restroom.

Earlier today, the Attorney General filed a Notice of Appeal challenging the ruling of federal district court Judge Scullin which declared certain provisions of the recently enacted lawyer advertising rules unconstitutional, as more fully explained in this post.

As reported in this Business Review article:

At the 11th hour, the state Attorney General's office filed a notice of appeal seeking to reverse a decision that found many of New York's attorney advertising guidelines to be unconstitutional...

The case was brought by Public Citizen that represented its members, attorney James Alexander and Syracuse law firm Alexander & Catalano LLC.

"We'll keep fighting; we're not going to give up at this point," Greg Beck, an attorney who litigated the case for Public Citizen, said about the appeal. "I think the district court's decision was careful and well-reasoned and I have a hard time feeling it will be reversed on appeal"...

The court permanently banned enforcement of most of the challenged rules against attorney advertising, including rules against attention-getting techniques; use of nicknames and mottos; use of client testimonials; portrayal of judges; and use of Internet pop-up ads.

Yet another interesting development in this lawsuit. I'm looking forward to following this appeal and will provide updates as I learn more.

This week's Legal Currents column, which is published in The Daily Record, is entitled "Youth Obsession and Offenders." The article is set forth in full below, and a pdf of the article can be found here.My prior articles can be accessed here.

********

Youth Obsession and Offenders

Ours is a culture obsessed with youth.

Men use any number of techniques to disguise
receding hairlines, including ridiculous looking
comb-overs, hair transplants and creams that
reduce the rate of hair loss.

Women spend inordinate amounts of money on “wrinkle-reducing”
lotions and make up.
Hormonal treatments linked to breast cancer and little blue
pills are deemed the answer to lost youth and waning sexual
desire. People color their hair, allow chemical substances to be
injected into their bodies and undergo painful cosmetic
surgery — all in a desperate attempt to reclaim lost youthfulness.

The mainstream media does little to quell this national
obsession. Youth is glorified and sexualized in every medium
— magazines, the Internet, music, movies and television.
Nearly-naked Twiggy-esque models who appear to be just
entering their teens are splashed across the covers of magazines.
In her infamous first video, then-17-year-old Britney
Spears pranced around the halls of a high school with pink
bows in her plaited hair while wearing a rather revealing
plaid skirt school uniform. The oft-sued and enormously
popular “Girls Gone Wild” franchise releases videos entitled
“Girls Gone Wild: My 18th Birthday” and “Girls Gone
Wild: Daddy’s Little Girls.”

Just last week, the most e-mailed and viewed image in the
news section of Yahoo.com was that of the bikini-clad
Louisiana contestant in the Miss Teen USA beauty pageant,
Logan Brook Travis, a 15-year-old girl.

Is it any wonder some adults develop unhealthy sexual proclivities
toward children?

Simply admitting the obsession is sufficient to
incur society’s wrath and apparently invites the
imposition of arguably illegal restraining orders,
as in the case of Jack McClellan in California.
McClellan, a self-professed pedophile with no
criminal record, first attracted national attention
when he published a now defunct blog that
included pictures of children taken in public
locales and advised readers of the obvious fact
that girls tend to congregate in places such as
public libraries and playgrounds.

In early August, two California lawyers sought
an injunction against McClellan, and a Los Angeles
Superior Court judge subsequently granted a
temporary restraining order barring McClellan from contacting,
photographing or videotaping children under 18 years of
age without parental consent, or loitering within 30 feet of
areas where children congregate. Just last week he was
arrested and jailed for violating the order after he was seen
with a camera near a daycare located on the UCLA campus.

A man jailed because he expressed publicly his reprehensible
thoughts? I don’t condone his beliefs, nor do I agree with
them. But where do you draw the line? Should we jail movie
critics who recommend the movie “Lolita?”

Those who do more than simply parrot our societal obsession
with youth and actually act on their desires are permanently
branded sex offenders by the courts. They are the new
pariahs of our culture, forbidden to live freely amongst us.

At the local level, in Schenectady, attorney Melanie Trimble
on behalf of the the New York Civil Liberties Union, and three
capital area lawyers (Terry Kindlon, Kathy Manley and David
Giacalone), sent a letter threatening to file a lawsuit against
Schenectady County as a result of its newly-enacted sex
offender residency law.

The law prevents every level of registered sex offenders
from residing within 2,000 feet of public parks, pools, playgrounds,
schools and other childcare facilities. Registered
offenders whose current homes were within range of one ofthe specified areas were required to vacate their homes as of
Oct.1.

After receiving the NYCLU letter, which, in part, objected to
the new law as an unconstitutional ex post facto punishment,
the county announced it would rescind the section mandating
relocation and revise the remaining provisions.

Earlier this month in Georgia, a homeless sex offender who
served his time in prison was sentenced to life in prison simply
because he failed to register his non-existent address with
state officials. In essence, he was imprisoned simply because
he was homeless.

As a mother, I am disgusted and deeply disturbed by any
form of child abuse and will do everything within my power
to protect my children from predators. But I cannot ignore the
conflicting messages with which our culture is bombarded
regarding the connection between sexual desire and youthfulness.

Our youth-obsessed culture created and supports these
undesirable desires. To permanently demonize those who
simply parrot that which they see constantly in the media, or to
permanently imprison those who are unable to restrain themselves
from acting on the desires and ideals actively espoused
by our culture is, in my opinion, nothing short of hypocritical.

In People v Nieves-Andino,
2007 NY Slip Op 05584, the victim of a shooting who later died, Jose Millares, was discovered lying in the road by a police officer responding to a 911 call regarding a shooting. The responding officer summoned an ambulance and then asked Millares for his name and other pedigree information. He then asked him what had happened. Millares responded that he'd argued with a man named Bori who had shot him three times. He also provided Bori's address.

The defendant alleged that admitting the victim's statement at trial would violate his 6th Amendment right to confront the witnesses against him as set forth in Crawford v. Washington, while the prosecution argued that the statement constituted an exception to the hearsay rule as an excited utterance and its admission would not violate the 6th Amendment.

The Court first explained the underlying case precedent prior to reaching the issues raised in this case:

Our decision is guided by Crawford v Washington (541 US 36 [2004]) and Davis v Washington (126 S Ct 2266 [2006]). In those cases, the Supreme Court held that the Federal Confrontation Clause prohibits the "admission of testimonial statements of a witness who did not appear at trial unless [the witness] was unavailable to testify, and the defendant had had a prior opportunity for cross-examination" (Davis, 126 S Ct at 2273). Only statements that are testimonial make the absent declarant a "witness" within the meaning of the Confrontation Clause (see id.). In Davis, the Supreme Court explained that statements made in response to police inquiries are not testimonial when the circumstances "objectively indicat[e] that the [*3]primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency" (id.).

The Court concluded that the victim's statements did not violate the defendant's right to confront witnesses against him since the officer's primary purpose in questioning Millares was to address an ongoing emergency:

Even when the assailant has fled, the circumstances of the police officer's questioning of the victim may objectively indicate that the officer reasonably assumed an ongoing emergency and acted with the primary purpose of preventing further harm...

Officer Doyle arrived at the scene of a recent shooting
and, as soon as he had summoned medical help, asked the victim what had happened. Given the speed and sequence of events, the officer could not have been certain that the assailant posed no further danger to Millares or to the onlookers. His brief solicitation of pedigree information and information about the attacker's identity was part of Officer Doyle's reasonable efforts to assess what had happened to cause Millares's injuries and whether there was any continuing danger to the others in the vicinity. In other words, the primary purpose of his inquiry was to find out the nature of the attack, "so that he could decide what, if any, action was necessary to prevent further harm" (Bradley, 8 NY3d at 127)...(and its) admission did not implicate defendant's right to confrontation...

When...a police officer justifiably believes that the assailant no longer poses a threat to the victim, the purpose of his or her interrogation of the victim may "evolve" from dealing with an ongoing emergency to establishing past events with a view to later criminal prosecution (id.). On this record, however, the initial purpose of Officer Doyle's inquiry did not change.

I think the Court was correct in its decision. It makes no sense to allow defendants to benefit from the death of their victim. In other words, if the victim lives, the statement is admissible since the victim is available to be cross-examined, but if the defendant succeeds in the attempt to kill the victim, then the statement identifying the defendant is out since the dead victim (obviously) can't testify.

That is, unless Ouija boards are allowed in the courtroom. Now, there's an interesting idea.

As I read this case, it occurred to me that the dying declaration exception would likely have been the strongest argument for admission of Millard's statement. I can only assume that the exception wasn't applicable since the victim died at a later point in time. The decision doesn't indicate when he died, however, and simply states that he died. I suppose the time of his death will have to remain a mystery for now, since I don't have time to track down the record on appeal.

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